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Abbott Gets a Second Shot with Glucose Monitoring Patents

By Robyn Hagan Cain | Last updated on

Convenience can be a patentable quality when creating a glucose monitor.

Friday, the Federal Circuit Court of Appeals found that the USPTO's rejection of Abbott Diabetes Care's glucose monitor technology was unreasonable due in part to the inconvenient wires protruding from the non-Abbott glucose monitors.

Abbott owns two patents that describe methods and devices for "the in vivo monitoring of an analyte using an electrochemical sensor to provide information to a patient about the level of analyte in the bloodstream." (In other words, glucose monitor technology patents.)

Abbott's specification describes the methods and devices for monitoring diabetic glucose levels. The specification notes that a variety of devices exist for monitoring glucose levels in the bloodstream, but some of these devices include sensor guides that are "typically bulky and do not allow for freedom of movement."

According to the "Background of the Invention" portion of the specification, the prior art systems also feature external wires and cables connecting the various components, thus restricting the user's daily life activities and movements.

In 2006, the USPTO granted third-party requests for ex parte re-examination of Abbott's patents. During reexamination, the examiner rejected all of the claims as being indefinite, anticipated, or obvious over several combinations of prior art references.

Abbott appealed.

The primary dispute in this case was whether the broadest reasonable construction of the "electrochemical sensor" in Abbott's patents included external cables and wires connecting the sensor to its control unit. Abbot argued that the wireless feature was distinct. The Federal Circuit agreed.

The appellate court found that the review board's construction of "electrochemical sensor" was unreasonable and inconsistent with the language of the claims and the specification.

While the USPTO emphasized that it was required to give all claims their broadest reasonable construction, the Federal Circuit had previously held that claim language should be read in light of the specification "as it would be interpreted by one of ordinary skill in the art."

Further support for Abbott's argument? Every embodiment disclosed in the specification shows an electrochemical sensor without cables or wires.

Here, Abbott's patents "repeatedly, consistently, and exclusively" depicted an electrochemical sensor without external wires or cables, so the court found that Abbott's patents defined the sensor's connectivity by implication. The Federal Circuit concluded that the USPTO had misconstrued the glucose monitoring patents to include features the patents were actually disparaging in prior art, and remanded the case.

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